Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

January 30, 1862

The Convention assembled and was opened with prayer by Rev. R. L.
Brooks, a member.

After the reading and signing of the journal,

MR.
LAMB. Mr. President, the first business I suppose would be the
improvement suggested to the 11th section of the third report of
the Committee on the Legislative Department which the Convention
had under consideration last evening in regard to the apportionment
of Raleigh, Wyoming and McDowell. Are the gentlemen
present?

MR.
HAGAR. Two of them are here.

MR.
LAMB. If not ready, the subject I suppose could be passed by
with general consent.

THE
PRESIDENT. The gentleman from Marshall had intimated a purpose
to make an amendment to this report. The motion would be in
order.

MR.
CALDWELL. The proposition that I made here which I discussed is
a substitute offered by the gentleman from Wood, and as I stated
last evening, I was willing to accept his substitute for my
proposition, and by reason of his absence I do not wish the matter
taken up just now. As there are some other matters connected with
the legislative report that we cannot dispose of, perhaps we had
better pass them by.

MR.
LAMB. This other is the only matter that remains undisposed of
except the apportionment of Wyoming, etc. If this is laid over I
shall have to be absent an hour or so. The gentlemen are in now and
perhaps can report whether they reached an arrangement or
not.

MR.
WALKER. In regard to these counties we have agreed on an
amendment. We give Raleigh the first delegate; Wyoming the second;
then return to Raleigh; then Wyoming; then McDowell. That is about
as near as we could get to it.

The
Secretary reported the amendment as follows:

"Strike
out all the 11th section after the word 'for' in the 99th line, and
insert the following: 'the first term, to be a resident of Raleigh,
for the second term, of Wyoming; for the third term, of Raleigh;
for the fourth term, of Wyoming; and for the fifth term, of
McDowell county,' and so on in each case in rotation."

The
amendment was adopted, as was also the section as
amended.

MR.
CALDWELL. I ask, sir, that the substitute offered by Mr. Van
Winkle for the additional section proposed by me be taken
up.

The
substitute was reported as follows:

"The
legislature shall pass general laws whereby any number of persons
associated for mining, manufacturing, banking, insuring, or other
purpose useful to the public, excepting the construction of works
of internal improvement, may become a corporation, on complying
with the terms and conditions thereby prescribed; and no special
act incorporating, or granting peculiar privileges to, any joint
stock or other company or association, not having in view the
construction of some work of internal improvement, shall be passed.
But no company or association shall issue bills to circulate as
money until it has given security for the redemption thereof, in
such manner as shall be provided by laws of this State, or of the
United States."

MR.
LAMB. Mr. President, I hope it will not be the pleasure of the
Convention to adopt the motion. While in perhaps nine cases out of
ten these corporations ought to be created by general laws, yet it
would unquestionably be unwise to insert an inflexible rule in
regard to the subject in your Constitution. What would be the
effect of it? You pass a general law prescribing the privileges,
mode of organization, etc., of these corporations. Let us suppose
you have inserted in that general law that the board of directors
shall contain nine directors. A particular case comes up in which
it may be expedient to have five or seven; and in that particular
case your legislature provides for the incorporation of a company
with seven directors, making that single change from your general
laws. If you insert this inflexible rule in your Constitution the
whole of the charter becomes void. The slightest variation from it,
the slightest special provision incorporated in the charter of any
company invalidates the whole act. It is a violation of the
Constitution. Your corporation has no legal existence. Then the
question is simply this: though it may be expedient, may be proper,
and will no doubt be expedient and proper, in nine cases out of
ten, or perhaps in 99 cases out of 100, that these corporations
should be created only under general laws, is it expedient and
proper that you should insert an iron rule in your Constitution? Is
it expedient and proper that you should adopt here, in fact, the
old fable of the bed of Procrustes and fit everything without the
liberty of changing it under any circumstances, to your rule? This
difficulty may be avoided, it is true, when it becomes necessary to
adopt a special provision in regard to a particular corporation.
You would have to alter your general laws as to all corporations.
The alteration would apply not merely to the special case in hand
but to all corporations which had been thereafter created. You
would be compelled to alter as to those in all the State as to a
particular case. Let us see how it would operate. You want
companies for manufacturing purposes in Kanawha, to develop the
immense mineral wealth that exists there; to work your coal mines.
To incorporate those manufacturing companies and render them
capable of securing the public benefit which ought to be
anticipated from them. they must have something in their charters a
little different from that of an ordinary manufacturinig company
for the purpose of making iron or nails or something of that sort.
And yet here you are to adopt a fixed and inflexible rule which is
to govern in all things under penalty that if you depart from it in
any special charter that charter becomes a nullity and the whole
property which may be vested upon it is at risk; or you are to go
to work and alter your general laws whenever these special cases
make it necessary for the public benefit to adopt some slight
change from the general system.

I think,
Mr. President, all this is a matter which ought to be left to the
discretion of the legislature; while I would say that in nine cases
out of ten at least the legislature ought to act on the principles
which are indicated in this amendment, yet I would regard it
unfortunate that you should fix an inflexible rule in your
Constitution. The resolution itself acknowledges the necessity
which I am advocating. The resolution itself acknowledges that it
would be impracticable to apply the same principle to internal
improvement companies as to every other company. It leaves it
subject to an invariable rule. And, gentlemen, in regard to the
last clause of the amendment proposed, I must say that if this
Convention undertakes to determine what system of banking shall
exist for all time to come in this commonwealth, they undertake to
settle more than any men can wisely settle at present; but I will
undertake to say, however, that if they intend to fix inflexibly
upon us the system of banking contemplated in the last clause of
this resolution, they will have adopted the worst system of banking
for the public interest, the interest of the stockholders and of
everybody that can possibly be devised. I had supposed since the
late occurrences that this system had been pretty well exploded.
What have we seen recently in Illinois? The whole system throughout
the state was based on this principle of stock security for
circulation; and the whole system within the last twelve or fifteen
months has exploded there completely. I recollect during last fall
and winter when we used to be furnished by the banks in Cincinnati
and other places with a schedule in regard to Illinois money, all
secured by stocks, all announced as a perfect system of security;
but here on this schedule you would find a half dozen banks to ten
at ten per cent discount, and a dozen other down to twenty; some at
thirty; some at forty and so on up to seventy or eighty! All the
banks of Illinois based upon this principle were at these enormous
discounts. Since then they have all gone out of existence. There
was six or seven millions of circulation in that state all founded
on this system; and out of that circulation no doubt the bankers
and brokers of Cincinnati made some two millions of dollars, owing
to its depreciation. No doubt the tax on the industry of Illinois
owing to the deranged state of their circulation incident upon this
system far exceeded the whole amount of the circulation itself, for
all business was deranged and all business injuriously affected in
that state owing to it. A bank based on this system cannot
accomplish the end which a bank ought to accomplish. It cannot
accommodate the trade and business of the community which surrounds
it. We have had them here in Wheeling. We have had banks here in
Wheeling on this system; and very wisely they concluded some three
or four years ago to wind up and quit business. You have had them
in Fairmont and the gentleman from Marion county can answer to this
system operating there, has answered for the condition of the
people and business of that district.

They
commence by lending their whole capital to the State, and what have
they to lend to others; what funds have they got remaining to
accommodate and facilitate business operations? You incorporate a
bank under this system with a capital of a hundred thousand
dollars, and they begin by lending $100,000 to the State or
investing it in State stocks, which amounts to the same thing, and
then they are out of cash altogether. They have just got simply
their circulation to work upon; and with that circulation they must
supply their coin; and they must invest that circulation in such
way as to be able to meet it when it is returned to them for
redemption. With $100,000 of circulation they buy $25,000 of coin.
That is the usual operation. They buy it with their circulation.
Then they have $75,000 of circulation left, and they can only use
that circulation in such way that whenever circulation is returned
to them they shall have means of redeeming it. They cannot lend it
out for the accommodation of business; and they are necessarily, by
the very constitution of their existence, shaving shops. This
system has been adopted in New York. But, gentlemen, it is a very
significant fact that this system has not been adopted in a single
New England state. I am not for imitating either New England or New
York, but I do suppose that the Yankees understand something in
regard to financial matters. Anyhow, gentlemen, whether the system
be proper or not, is it proper to fix these things in your
Constitution? Is there the place for them?

MR.
BROWN of Preston. I move to strike out of the 12th and 13th
lines the words "or of the United States." I am opposed to Congress
interfering with our private affairs. I do not think, sir, that
Congress has any right to interfere by legislation in our affairs
either in banking or in other affairs, and really I do not see the
pertinency of the words. I prefer that we should make our own laws,
and that so far as our internal affairs are concerned, both as to
this and everything else, that the Federal Government should not
interfere with our institutions. I move, sir, therefore, to strike
out the words "or of the United States."

MR. VAN
WINKLE. My views in preparing this divides it into two
provisions. When I came in the gentleman from Ohio was remarking on
the latter one. The object of the first part of it, which I can
have very little doubt will meet the entire approbation of this
Convention in some form is instead of making these corporations for
ordinary purposes have peculiar privileges and rendering it
necessary to go to the legislature to petition them, to go round
lobbying and log-rolling in order to get a little facility for
doing business, is to draw the law, not for a small number of
citizens but so that any number of citizens can have the privilege
of doing their own business under general laws to be passed by the
legislature and of course under such restrictions as it will throw
around it for the safety of the commonwealth. I believe laws are
already in force in reference to mining and manufacturing. There is
also a general banking law under which certain independent banks
have been chartered. And I believe they do require them there to
come and get special permission. This simply in aid of what I have
spoken of. We have had great cause in former years to complain of
the legislature, of long sessions and little done. I think, as I
have already stated, that taking these private matters out of the
way and introducing the members to court, with matters involving
State policy, it would purify your legislature - or if they do not
need purifying by individuals, which is not what I mean, yet it
will purify it as a public body; prevent that kind of solicitation
which leads to unequal, partial, and very frequently unjust
legislation. Now, what is there to hinder? Suppose that I go down
to the country of the gentleman from Kanawha and I find a nice bed
of cannel coal and I and a half dozen others go and purchase it.
Now we want the facilities for benefits in this way. I have not
capital enough to fully develop it, and we must try and associate
others with us. Well, now get an ordinary partnership with three or
four partners, nobody will go into it. We merely then want this
legislative facility in order that we may transact this business
conveniently; and everybody knows that when a company enters into
an enterprise of this kind the welfare of the public is measured by
the success of the company. A charter is applied for and refused
though granted to a company just opposite us. Well, now what is the
necessity of going to the legislature? We have a limited
partnership law, an excellent law too. That allows a partner to go
into a mercantile establishment and limit his responsibility. There
are certain conditions which he has to file evidence of in the
clerk's office. He puts in a cash capital of so much and is allowed
to manage the business. It seems to me it is the same in reference
to many of these small corporations. Internal improvement companies
affect the State at large. Therefore it is a matter in which the
State at large should have an interest. But whether it affects the
State at large, whether we have one more or less bank in Wheeling
or Parkersburg is what I am unable to see.

Coming to
the latter clause, I do not pretend to be so familiar with this
subject as to say whether it is likely to be entirely beneficial or
otherwise. Let me try to explain how I understand the matter.
Legislatures are here hammering at the banks and placing
restrictions on them, and frequently the restrictions imposed are
the very thing that go to destroy their usefulness. Now the
government has nothing to do with any part of the business of
banking except the circulation. That goes forth to the public, who
receive the benefits of the endorsement a special charter gives to
the bank. The furnishing of the currency of a nation is a high act
of sovereign power. Coinage is not permitted to individuals. It is
a function only of the sovereign power. It is proposed here that
these banks shall give security for the circulation; nothing more,
and the putting up of something that is tangible, that can be sold
in the market to pay its bills in case of failure of the bank is
what is contemplated here. Now, we are told by the gentleman - and
of course, I do not pretend to be as familiar with it as he is -
that this scheme has worked badly in Illinois and possibly in
Michigan; but I notice it has worked admirably in New York and
Ohio. In the other cases state stocks were permitted and about that
time the funds were invested in Arkansas stocks, and the result the
United States had to come up and pay the money. But I believe the
New York banks were secured on their own state stocks, or the
stocks of the United States, both perhaps as good as the gold
itself. But, again, the gentleman is certainly mistaken in
supposing them to put their whole capital that way. They put an
amount equal to the circulation. If they are prepared to issue
$80,000 in circulating notes, they put up $50,000 in stocks; and so
on if they want to increase, but always retain something to do
their business on; and I think that some of the banks in the West
do the most of their business on their circulation anyhow. I
cannot, of course, in a thing that gentlemen profess to be entirely
familiar with set myself up as contradicting them; but it is
something that each member of the Convention is able to judge of
for himself, as to the principle whether banks are to be compelled
to give security and indemnify the public against any loss by the
circulation of their notes, and consequently whether the system
here proposed is a good one or whether it all resolves itself into
the first question of whether they are to be compelled to do it or
not. As to the first portion of this subject, I think there will be
hesitation. If you think banking corporations are improperly
included, strike them out. But do give these small business
corporations the power of going into business without going to the
legislature at every session and encountering private opposition
before they can get these ordinary facilities for transacting their
business.

MR.
SMITH. I entirely approve of the principle involved in this
substitute. The thing itself meets my approbation with one
exception. But it is pretty generally understood from what I have
said in this Convention that I am opposed to enactments in the
Constitution. I object to it on that account. I do not know whether
it is generally known here or not, but this thing, with the
exception of banking exists now under the law in Virginia. I have
myself procured some half dozen charters under the existing law by
an application to the county or superior court, which ever is the
most convenient. It is now the law, and we are adopting the law
into the Constitution. It is the existing law now of Virginia. You
may apply to the county or superior court at any time and get a
charter for any mining or manufacturing purpose, or any other
purpose not banking. As to the banking part of it, I think it is a
little questionable whether we ought to open the door to such
innumerable banking establishments as may exist under this law. The
legislature, however, have the power if they deem it proper to add
banking to the other acts of incorporation. And here you make it
the imperious duty of the legislature to pass this law, and if it
works badly you will have to call a convention to get rid of it.
You may fill the whole country with a spurious currency, and there
is no redress at all. I think banking ought not to be in; and if it
is necessary to be in, the legislature can put it there, and if it
is found to work badly the legislature can repeal it. As to acts of
incorporation for mining, manufacturing or any industrial purpose,
I say the power now exists differently and I entirely approve of
it. I don't want it in the Constitution because we have now got it
in the law and I don't want to enact a new law and make it
unbending in its provisions. I therefore object myself to the whole
amendment, not because I disapprove of any of these principles
except the banking but because I do not think it is proper to be
inserted into the Constitution. I would prefer leaving it to the
legislature; for they will have to repeal the existing law for
every other purpose than banking or the right still exists. I
imagine the lawyers here are aware of the fact that it is the
existing law.

MR. VAN
WINKLE. I do not know that the law of Virginia is necessarily
the law of West Virginia.

MR.
SMITH. I imagine that law will continue until it is repealed;
or else the laws of Virginia will prevail here so far they are not
in conflict with the Constitution that we have already adopted, and
if it is necessary they may be re-enacted; and there ought to be a
revision of the law, at any rate, under it and adopt such as are
necessary. But I believe when you transfer one territory to another
political division, the laws existing in that territory at the time
of the transfer is made are in force until they are repealed. I
believe that is a national principle. It is a law now, and if it is
not the legislature will have power to make it a law.

MR. VAN
WINKLE. I do not understand what inference the gentleman draws
from the fact that there is a law.

MR.
SMITH. Why, there is a law now by which the county court or the
superior court may grant charters to any industrial association,
mining, manufacturing - all but banking. Banking is not authorized
by it; but for every other purpose the existing law of Virginia
authorizes it; and I say I have secured as many as half a dozen
charters in the county in which I live, and the applications there
in the country are very common, and most of our companies or
incorporations and under and by virtue of the existing general law
now in Virginia. I am unfortunate in not being able to turn to the
book, but I take it the act was passed in 1852 or 1853, under which
the whole thing has been done in the country, and it is a thorough
law to supercede the necessity of these frequent applications for
incorporation. I think it an excellent law; but I do not want it in
the Constitution.

MR. VAN
WINKLE. If I understand the gentleman, whatever is on the old
statute book is not to be put into this Constitution.

MR.
STUART of Doddridge. I desire to amend by striking out the word
"banking" in the second line and after the word "excepting" in the
third line inserting "for the purpose of banking or."

MR.
LAMB. I hope the objection I made to the insertion of the
provision in the Constitution was understood. I, like the gentleman
from Logan, considered that it was impracticable for the
legislature in nine cases out of ten at least to act under this
rule; and that it would therefore by no means follow that it would
be wise or judicious in this Convention to insert the rule in the
Constitution which would prevent them in every possible case from
varying from it. For instance, this provides that "no special act
incorporating or granting peculiar privileges to any joint stock or
other company or association not having in view the construction of
some work of internal improvement shall be passed." Now, if it be
necessary, or if it be proper, to make the slightest change in the
constitution of that company from that which is prescribed by the
general law, the legislature will be prohibited from doing it; and
in the case I mentioned, if the general law prescribes nine
directors and you want but five or seven and go to the legislature
and get a special act subjecting you to the general law with that
single exception, your law is void if you incorporate this
provision in the Constitution. The same object can be accomplished,
as it has been accomplished, by leaving this matter where it
properly belongs, to the discretion of the legislature. What is it
that has occupied and delayed the proceedings of this Convention so
long but this disposition on the part of certain members to
incorporate first one provision of your code of laws and then
another provision of your code of laws into the Constitution, where
they do not belong? Is all wisdom to be gone when this Convention
adjourns? Are we to institute a legislature under our system and
then say in every line and paragraph of the Constitution that we
hold them unworthy of confidence, that we do not believe they can
legislate wisely or properly? And particularly in cases of this
kind where the necessity may occur of adopting some special
provision in regard to one company or another. The gentleman
himself recognized the necessity of that in this, for he is not
willing to apply it to works of internal improvement, while the
gentleman from Doddridge is not willing to apply it to banks; and
if we had anybody representing insurance offices, you would find
they would be unwilling to apply it to insurance offices because it
may be proper that an insurance office in Charleston, Kanawha, may
operate with five directors, while one up here might properly have
nine. The legislature by this provision here would be prevented
from allowing the slightest variation in the organization of one
company from that which has been prescribed by their general
system. Is it not best to leave this matter to the legislature? Let
the legislature of West Virginia have a wise and prudent and proper
system for instituting corporations under general laws that will be
just as effective as it would be if inserted in your Constitution
where it does not belong; and if it ever becomes necessary to
depart from that law, then the legislature would have the matter
within their control. Men would not be called upon to invest large
amounts in companies necessary for the improvement of the country
or to develop its resources with uncertainty whether this provision
of your Constitution did not render their charter entirely
void.

MR.
STEVENSON of Wood. There are two features, Mr. President, in
the proposition offered originally by the gentleman from Marshall
which I would like to see incorporated in this substitute if it is
to become a part of the Constitution; and for that purpose I
propose to offer one of them as an amendment.

THE
PRESIDENT. There is already an amendment. There is already an
amendment to it offered by the gentleman from Wood.

MR.
STEVENSON of Wood. Yes, sir; I supposed, however, that this was
acted on as an original proposition, and that amendments to it
would be in order. If this is to be acted upon as a clause or
section in the report of the legislative committee, then two
amendments would be in order.

THE
PRESIDENT. Would the proposition apply to the amendment of the
gentleman from Doddridge?

MR.
STEVENSON of Wood. No, sir.

THE
PRESIDENT. Then, of course, it could not be offered as an
amendment.

MR.
STEVENSON of Wood. Then I will just suggest it. I propose to
insert after the word "passed" in the 9th line: "except where the
object cannot be obtained under such general law."

MR.
BROWN of Kanawha. I desire to know precisely the amendment
proposed by the gentleman from Doddridge.

THE
SECRETARY. To strike out the word "banking" in the 2nd line and
insert "for the purpose of banking or," after "excepting," in the
3rd line.

MR.
STUART of Doddridge. Then it will be necessary to insert "or
banking" again after the word "improvement," and strike out the
word "money" in the 10th line. It would be necessary in consequence
of the amendment I propose.

MR. VAN
WINKLE. It is to put them on the same footing as internal
improvements.

MR.
BROWN of Kanawha. Then if that is the understanding it is my
view exactly. I have written an amendment here expressing the same
idea. I wish to place banks on precisely the same footing as works
of internal improvement, and I desire that they should be retained
in the hands of the legislature. That this plan of associated
capital for mining corporations and manufacturing and insuring and
other purposes useful to the public I think is highly proper should
be done by general law; for it relieves the legislature of an
immense amount of special legislation.

There is
another view. We have adopted in the education report the principle
that the bonuses are legitimate funds to be applied to educational
purposes. Now, if you place the granting of banking charters in the
hands of the courts, to be decreed whenever a party conforms to
certain requisitions, there is an end of all your bonuses and you
may have all the privileges of the State granted to little
corporations to issue money and they may flood the country with
worthless paper and as no bonus derived for the privilege and every
little community turned bankers to break up the country. It is
highly important therefore that that privilege is preserved in the
hands of the legislature, where they may if they choose to
prescribe a bonus which will go to the educational resources of the
people. The same way with works of internal improvement. Those
works that are purely local in their character, merely for purposes
of private interest, manufacturing or for lumber or mining, it is
proper they should be done by general laws. That is the law now and
it has been found to work well in its operation. We have
corporations all over the state granted under the provisions of our
general law by the courts. But high public policy requires that
banking and internal improvements should be retained in the hands
of the legislature of the state.

MR. VAN
WINKLE. One word in explanation, sir. I do not intend to be
anyways tenacious about this matter. I wanted to submit it to the
good sense of the Convention. I stated in reference to internal
improvements that I had thought proper to except them; that they
did operate directly on the public or involve public interests, and
therefore it was proper the legislature should retain control of
them. Now, I will admit as to the circulation of bills that that
also should be considered a public matter, and I would not be at
all strenuous in objecting to the amendment of the gentleman from
Doddridge. I merely want to suggest that we should confine it
however to banks of circulation; and then this last clause may come
out. Of course, if they are put in the power of the legislature, I
mean to say this, that there are in all the states - and I do not
know but in this - companies that are doing a banking business, as
they call it. They receive deposits, discount notes. I believe most
all perhaps all the banking business in Cincinnati is done in that
way; but they never had any power and are actually forbidden to
issue bills to circulate as money. Now, under such corporations as
that this operation does not arise. It is simply those that issue
bills to circulate as money. If this amendment should be confined
to them, which it might very easily, I would not object to it.
Might take out "banking" or leave in the words "useful to the
public excepting the issuing of bills to circulate as money or the
construction of works of internal improvement."

With that
modification, I am prepared to vote for the amendment of the
gentleman from Doddridge, and I suppose that is what he wishes to
reach.

MR.
HERVEY. I am aware that the gentleman from Wood has consented
to the modification suggested by the gentleman from Doddridge. I am
opposed to striking out and would be in favor of placing works of
internal improvement on precisely the same footing if we are to
have a constitutional provision at all; and to obviate the
objection of the gentleman from Ohio in regard to existing charters
I had provided a line or two which I thought would do that; but it
is not now proper to offer it, namely, that the provision should
not affect existing charters until their expiration. But, sir, if
this provision, as now stripped - as I regard it - of all
individuality, of all practical utility, is sought to be
incorporated and is actually incorporated in the Constitution, I
shall regard it as of no avail. I see no reason, sir, why banks in
this State may not be placed under the same general rules and
regulations that they are in other states, and I see nothing in the
associated banks of this city to entitle them to a position of
credit over banks of other states. Has their history been a
profitable one either to themselves or the community? Have not bank
doors and vaults been locked for years and years in the very face
of a state law, and the legislature at the very next session
legalizing that violation of their charters and the law? Sir, there
is no argument in it. But, sir, I am in favor of incorporating this
provision in the Constitution for another reason and that is that
we have heard a great deal in this country about the moneyed power
of the country; about the concentration of the money power in the
management of the affairs of the country. Now, sir, incorporating a
provision of this kind in the Constitution as a general system of
banking and for works of internal improvement constructed on a
general system, you abolish this monopoly in banks, bank charters
and in the systems of internal improvement. You avoid the very
thing which gentlemen talked about here to-wit, log-rolling in the
legislature. Strike this out and you incorporate a system of
log-rolling in the legislature; and if individuals want a banking
association they besiege the doors of the legislature asking for
special privileges; and if chartered on this basis they have
privileges that are possessed by their fellow citizens.

MR.
STUART of Doddridge. I accept the modification proposed by the
gentleman from Wood.

MR.
BROWN of Kanawha. I fully endorse the amendment of the
gentleman from Wood. I know there is a large portion of the banking
business has no reference to the currency at all and in that as
purely local and altogether private and men can bank without
incorporation as well as with it if they choose. If I set up a bank
and my neighbors come and deposit their money with me I may as well
keep it and lend to anybody that may choose to borrow of me; and I
would see no objection to allowing these private banks the same
purpose. It is very common in almost every town or village almost.
You have safety-fund banks where the citizens make their deposits
and constitute a little banking fund. They may as well be
incorporated by law under a general provision as anywhere else. But
these banks of circulation that affect the public interest all over
the State, and everybody takes them on simple credit that they are
a bank authorized by law, and we ought therefore keep an eye on it
and control it, that we may always have a safe and sound currency.
I would reply to the gentleman from Brooke simply by a declaration
that while we may not have had a better currency in Virginia in
regard to banks than other states, I am confident we have had as
good and have banks in Virginia that will compare any day with
those in other states of the Union, and which will generally be
rated above them in solvency and circulation, grown in the
confidence of the people; and although our banks, when under the
pressure of circumstances have been suspended, the banks of all
other states of the United States have been suspended also. The
eastern banks always have a premium on their paper simply because
on account of the balance of trade we have to borrow money and have
to pay it there. That is the only reason they have any preference,
not because they are more solvent. On the contrary, I believe they
are less so perhaps.

MR.
STEVENSON of Wood. I offer to amend, Mr. President, by
inserting at the end of the word "passed" in the 9th line these
words: "except when the object cannot be attained under such
general laws."

MR.
BROWN of Kanawha. I now move to amend by striking out all after
the word "passed" in the 9th line as irrelevant after the
amendments made.

MR.
STUART of Doddridge. I would like to strike out all after
"money" in the 10th line. I would like to retain: "But no company
or association shall issue bills to circulate as money."

MR. VAN
WINKLE. I see the object of the gentleman from Doddridge. If he
will let the vote be taken on striking out, I suppose there would
be no objection to let the provision stand that he wants to retain
as it is a positive inhibition on all these companies against
allowing them to issue bills to circulate as money. But the object
of the gentleman from Kanawha is to strike out the clause that
compels those that do issue to give security.

MR.
BROWN of Kanawha. I do not want any to issue except those
properly chartered for the purpose and for no other purpose
whatever. It is a common practice in some states, and I have shown
the obligation in this state already to grant charters.

Mr. Stuart
withdrew his motion, and the amendment offered by Mr. Brown was
agreed to.

Mr. Stuart
of Doddridge then moved to add at the end of the section the
following: "But no company or association authorized by this
article shall issue bills to circulate as money," and the amendment
was agreed to.

MR.
STEVENSON of Wood. The other feature I spoke of is this: If the
legislature will have the power which this amendment proposes to
give them, I will not offer it. But for the purpose of getting an
opinion on that I offer it as an amendment to come in at the end of
the word "prescribed'" in the 6th line: "but all general laws
passed pursuant to this section may be altered or amended by the
legislature from time to time."

MR.
SMITH. I beg leave to suggest that is one of the very
excellencies of the legislature and its superiority of a
constitution, that a legislative act may be amended at any time at
any session they choose to act upon it, one year, two years or
twenty years thereafter the legislature may alter the law. I
suppose the gentleman is aiming at this, that when there is a
charter granted it shall be competent for the legislature to alter
that charter. They may alter the law, but they cannot alter the
charter, for that is a contract. That is the objection to this
whole proceeding. Now there is no provision here if your charter
wants amendment. How are you going to get it ? The legislature it
says may grant it and confine it to the general law to granting but
having given them no power to amend or alter the charter after it
is passed. That is involving the country in difficulty and
involving all these charters in difficulty. There ought to be some
provision at some place for all corporations that may need relief
and redress through their charters. There ought to be some power
somewhere to make these amendments, but I do not see under the
provisions of this Constitution that there is any capacity on the
part of the legislature or any other authority to change the
charter even though the parties wanted it changed. The legislature
shall pass the general law to grant charters, but that is all they
have power to do by this Constitution. That wants amendment, and I
do not see how you are going to amend it. Your amendment is
supererogatory because that power exists everywhere, in every
legislature, to amend a law. But it does not exist to amend a
charter.

There have
been so many amendments offered and they have not been announced
from the Speaker's chair that I really don't exactly understand
what has been amended. I think the proper rule is that whenever an
amendment is offered it should be in writing and announced by the
president of the Convention.

MR. VAN
WINKLE. I think when the gentleman from Logan looked into this
matter, his spectacles were not handy. He must have left them at
home. Now this is the condition of these general laws. The
legislature in every one of them reserves the right to change them
at pleasure; and it is a good feature just in that respect that it
does not for instance make the tolls on a railroad or on a
turnpike, or through similar things does not make them vested
rights, as they are under these special charters. On the contrary,
when the legislature charters now, as when it charters a railroad
company, for instance, it gives it certain peculiar functions, as,
for instance, the place where the property is to be constructed,
the amount of capital it may use and the authority to borrow money;
but then the balance is that it shall be subject to the general
railroad law which contains a provision that it shall be always in
the power of the legislature, so that matters of importance do take
vested rights because that without you could not get a corporation
to act at all. But this power, the mere subject of regulation, is
retained by the legislature. Again, the very beauty in these
general laws is, you have a general law in reference to railroads.
I have spent winters at Richmond endeavoring to prevent special
restrictions being placed on this Baltimore & Ohio Railroad;
and I always said to gentlemen there that if they would put it in
the general law, make it binding on other companies in the state,
we had not a word to say; but that we would resist as far as we
could any special legislation against that road in the way of
restrictions. Now see the advantage. If it is necessary for one
company, it is necessary for all, and every matter of regulation,
if you put it in the general law and it should operate
inconveniently to the public and hence to the companies, why then
the legislature is applied to to repeal that portion of the law. If
for any other reason it is desired that the general law be changed,
it is changed for the benefit of all. That is one of the beauties
of general laws. So with a general law in reference to counties or
townships, what powers they may exercise: we want general laws for
them, so that if you change for one you change for all; you secure
uniformity, equality and promote the interests of all alike. The
public discuss the law; the legislature is informed and instructed;
the legislation on any subject is settled by the great body of the
people, not by a few individuals. The subject of regulating
corporations should be thrown open to the public as far as proper
to do so and not made the result of special, and generally favorite
legislation; legislation that is favoritism and to a few
influential men.

Under this
system of general laws, whenever the legislature comes to act it
must be honest, be governed by public considerations only. Now this
exclusion of special legislation in these cases does not prevent
any just amendment being introduced. If the legislature shall pass
a law regulating insurance companies and in passing that law had
overlooked some important point or should have placed some
restriction in the law which would render their operation
impossible, there will be a voice coming up from the whole public
against that feature and demanding that the legislature repeal
it.

If, on the
other hand, you find these companies under this general law are
enjoying too much privilege, or something about it operating
injuriously to the public, the public voice comes up in protest and
the legislature heeds it if it is just. In that way, instead of
having log-rolling, the legislature is left free to act without
that kind of pressure and solicitation. I wish to be understood. I
believe we have as good men as any others; but this system of
favoritism has grown up and we are now suffering from it. In
relation to the propriety of this in the Constitution, we claim as
the right of the citizen that these things should be open to the
public and not confined to a few individuals. I leave it to the
Convention to say if this is not precisely the case where we need a
constitutional provision. The gentleman from Logan argues as if we
were making your general law and putting a general law into the
Constitution. We intend no such thing. We simply provide that these
things shall be open to any number of individuals who choose to
associate for the purpose, and that they shall be regulated by
general laws, so that one shall have no more privileges than
another; and unless they can show that their matter connects itself
as directly with the public as internal improvements or banks of
circulation or other objects that they ought not to ask, that there
shall be no special legislation on the subject. Where a matter
concerns the whole State, there the Convention will remember I have
asserted it was the proper thing for the legislature. But where it
concerned a single county, I want the county alone to legislate on
it. It concerns nobody else. I think it is due to those we
represent here that they shall have this right without going to the
legislature to obtain a mere facility for doing business and that
business generally beneficial to the public. I have complained of
that ever since our railroad has been constructed. I have been at
Richmond winter after winter to get facilities that could not
injure anybody; but because they wanted to build a railroad in the
other part of the state and the Baltimore & Ohio was a great
rival - they thought so, but they were very much mistaken - but it
was only by log-rolling that anything could be obtained and those
representing this trans-Allegheny country here who had axes to
grind have voted for the squandering of public money on the
railroad in the east but they had no interest when they did not get
one dollar for themselves. Such a system ought to be stopped, and
this law will tend to do it to a great degree.

MR.
BATTELLE. I must call the attention of the Chair to the fact
that the gentleman's time has expired.

MR.
HERVEY. I hope there will be no exception in any
case.

MR. VAN
WINKLE. What is the gentleman going to do if I just goon? I
hope no such gag laws will be passed.

MR.
STUART of Doddridge. I would like to accommodate the gentleman
but if this is to be done, let it be understood the rule is to be
done away with.

MR. VAN
WINKLE. Well, sir, I have lost the connection. I do not think I
have anything more to say. I only hope that what I have said is
better remembered by the Convention than it seems to be by me now
(Laughter).

MR.
SMITH. I suppose there is a parliamentary rule that every
amendment should be announced before anything is said upon it. That
rule so far as I have observed has been utterly disregarded, and it
leaves those! who are to act in the dark. I do not know oftentimes
how to vote. There is no announcement of the amendment. I will ask
as a favor to myself that the amendment of the gentleman from Wood
be reported.

THE
PRESIDENT. The Chair understood that if it was thought
necessary, while listening to the opinion of those who understood
it perhaps better than himself, he would offer it or would not, the
gentleman from Kanawha rose to advise the Chair, who heard him
through; and the gentleman from Wood followed on the same side,
counseling his colleague from Wood; and in that way the question
passed on. The Chair had certainly intended promptly to propound
the question after the gentleman from Wood took his seat; but he
took with the condition that he was inviting an opinion from other
members as to the propriety of the amendment. Hereafter, the Chair
will insist on the rule that whenever a gentleman offers a
proposition that he takes his seat until the Chair has an
opportunity of propounding the question. If he does not do so, the
Chair will feel compelled to insist.

MR. VAN
WINKLE. He may lose the floor, sir.

MR.
POMEROY. I suppose the motion is simply to strike out and
insert and is such a motion as will be plain and open without
writing. The Chair can announce the motion and let the discussion
goon.

THE
PRESIDENT. The Chair has found whenever he departs from the
rule it leads to great loss of time and that members will not draw
the distinction whether it is one of those cases in which everybody
understands the motion to be in order or whether it is not. And
therefore it is necessary that there may be no mistake longer as to
what the Chair does or does not entertain, the Chair will insist on
having the privilege of propounding as distinctly as he can the
question to the Convention.

MR. VAN
WINKLE. The Chair is right in that; and then let the Clerk read
it distinctly. But I remark that if you compel a member who gets up
to sit down again, some other member may take the floor from
him.

MR.
BATTELLE. I wish to propound now that very question: if a
gentleman gets up and makes a proposition, and pauses in his
remarks until the Chair states it, is it understood or not
understood with that relinquishing the floor, does he lose his
place and his right to speak? That is an important point,
sir.

THE
PRESIDENT. He has a right to explain his proposition before
offering it. In short, common courtesy allows five minutes perhaps
of explanation. The Chair is not of the opinion that he can deny
another man the right to the floor after the motion is
propounded.

MR. VAN
WINKLE. If a gentleman takes his seat, he leaves the floor. If
one gentleman interrupts another the first must stand during the
interruption or he loses the floor. We do not so much contend here
yet, but the time may come before we get through.

MR.
POMEROY. The idea is just this: suppose a member offers a
resolution and is disposed to take an ungentlemanly advantage and
move the previous question, I contend the parliamentary rule allows
the gentleman offering the resolution to maintain his standing
position until the resolution can be forwarded and read and then he
can make a speech on the resolution before he takes his
seat.

MR.
BATTELLE. I wish to make another remark in reference to the
proposition that has been interrupted by the conversation of
gentlemen since I was up before. I wish to have a distinct
understanding, on my part at least in reference to the proposition
I made a while ago: whether if I choose to offer an amendment to
the bill now pending, or a proposition in relation to it, whether
the intervention of the announcement of that proposition from the
Chair takes away my right to the floor. If that is a fact, it is a
proposition that I never have heard of in any deliberative body
elsewhere; and I wish to understand distinctly whether that is the
ruling of the Chair.

THE
PRESIDENT. How is that?

MR.
BATTELLE. If a member offers a proposition to the pending
question, does the announcement of that question from the Chair
take away the right of the person making that proposition to the
floor? For example, I get up and offer a proposition and propose to
speak to it as has been the case all along.

THE
PRESIDENT. It does not take away his right, but it puts him on
a par, in the opinion of the Chair, with any other gentleman except
so far as courtesy that other gentlemen may feel due to the mover
of the proposition.

MR.
BATTELLE. I wish then, now, here, with very great respect for
the Chair, to express my most emphatic dissent from that doctrine.
For one, I am disposed to take prompt measures to correct
it.

THE
PRESIDENT. The Chair would make this remark to the gentleman
from Ohio that he indicates those general views, that gentleman may
look into the manual; but where the Chair is thought to be wrong he
will hear any remarks tending to show the Chair is wrong or which
may change the decision.

MR.
POMEROY. Do I understand the ten-minute rule? I may vote to
extend the privilege to a gentleman, to any member even if he was
making a direct attack on the member from Hancock? I want to
understand the decision of the Chair. I understand the Chair to say
that in extending the privilege of the gentleman from Wood the
resolution was abrogated. The Chair is certainly
mistaken.

THE
PRESIDENT. The Chair understood the Convention very well as
intimating that if the rule was extended, then they were in favor
of abandoning the rule altogether. The Chair took it to be really a
vote to that effect.

MR.
STUART of Doddridge. The rule cannot be done away with without
a vote of reconsideration directly put to this house, and I would
remark, sir, that the Chair is certainly not correct in his other
decision that when an amendment is proposed to this Convention no
man is entitled to the floor until the Chair has propounded the
question and then accorded as a courtesy only to the mover of the
proposition.

THE
PRESIDENT. The Chair is aware that the Convention have not
voted to rescind their rule in relation to speaking. We have had no
direct vote on that but the Chair has understood that he was not to
apply his watch to gentlemen. The Chair has no disposition to be
less liberal than the Convention is.

MR.
STUART of Doddridge. We hope the Chair will keep the rule; we
shall insist on it.

MR.
BROWN of Kanawha. I desire to say one word. I am not very
familiar with these matters of rules; but I confess, sir, I desire
to understand what is to be the rule and to act upon it. The
gentleman from Hancock inquires what is to be the rule and desires
when he makes a proposition that some gentleman "ungentlemanly"
makes some motion - I do not know what the motion is - whether it
is to be enforced or not. Now I suppose if we have a rule it cannot
be "ungentlemanly" to enforce it. If it is, it ought to be known
beforehand and stopped. I desire to know another thing. If some
gentleman "ungentlemanly" offers a proposition and then seeks to
inflict an "ungentlemanly" speech on the house if they are bound to
sit and hear it.

MR.
POMEROY. To cut me off before I explain what I mean, by calling
the previous question.

MR.
BROWN of Kanawha. I did not hear anything about the previous
question. I understand in other bodies - in the house of delegates
- when a gentleman makes a proposition there the speaker propounds
the proposition to the house, and that until the speaker has done
this the party is not allowed to hold the floor nor stand on the
floor, nor debate it; and I have seen the speaker invariably
require the parties to take their seats until the proposition was
propounded distinctly; and after that was done the speaker then
announced that the question is open. Now, whether that rule is to
govern here, a parliamentary rule - the rule of the house of
delegates - I am not prepared to say, but I know nothing in the
rule that is either ungentlemanly or improper; and those rules that
are selected by this house to govern it ought to be enforced.
Whoever takes offense at the enforcement of the rule, I say I am
prepared to take the risk in consequences of the offense come
whence it may. I shall never take offense at the enforcing the
rules of the house so far as I am concerned for I feel very often I
get out of order.

MR.
POMEROY. I did not use the word "ungentlemanly" myself. I said
I would not use the word. But here is a proposition and another
gentleman sees proper, without its being discussed at all, to
demand the previous question. He has the right to make the demand;
but I do say that under such circumstances it is discourteous to do
it. It is a legitimate subject of debate, and I have no doubt the
gentleman from Kanawha, cut off from the right of free speech in
this way, would feel just like the rest of us.

THE
PRESIDENT. The Secretary will report the amendment of the
gentleman from Wood, to insert after "prescribed" in the 6th line
these words: "but all general laws passed pursuant to this section
may be altered or amended by the legislature from time to
time."

MR.
STEVENSON of Wood. I hope the amendment will not be saddled
with the sins of this waste of precious time. If that would have a
tendency to shorten discussion at all I will withdraw it. I believe
the object I had in view is attained.

Mr.
Stevenson withdrew his amendment, and the question recurred on the
adoption of the section as amended.

MR.
BROWN of Kanawha. I wish to offer an amendment which I will
read: "but no charter of incorporation shall be granted by the
courts under the general laws unless the right be reserved to alter
or amend the same at the pleasure of the legislature, to be
declared, however, by general laws," to come in at the end of the
section.

MR. VAN
WINKLE. It does not appear yet that the court is to grant them.
It would be better to say: "No charters shall be granted under
general laws."

MR.
BROWN of Kanawha. I accept the modification.

The
amendment as modified was adopted.

MR.
SOPER. I propose this as an amendment, sir, at the end: "Dues
from corporations shall be secured by such individual liability of
the corporators and other means as may be prescribed by
law."

MR. VAN
WINKLE. This is peculiarly in the province of the legislature
in framing these general laws; and I am not sure but the amendment
just adopted goes a little too far. It ought not to be admissible
to amend a charter granted under general laws. It strikes me the
legislature would not have power to prescribe all this and then
have it in their power to alter it.

MR.
SOPER. Was the gentleman opposing the proposition?

MR. VAN
WINKLE. I think it is unnecessary, sir. It had better be left
to the legislature.

MR.
SOPER. We are giving the legislature to prescribe by general
laws for the formation of incorporated companies. Now, there is a
class in the community wherever those incorporated companies exist
who are very often induced to lend their money to give credit to
the corporation and debts are otherwise incurred in the
neighborhood around where these corporations are. If the
incorporations are prudently managed it is all well, but if they
get into the hands of some speculating men who go for the purpose
of getting what credit they can out of the community in which they
reside and then suffering their incorporation to become insolvent,
to turn round to the creditor and say, why, there are no funds of
this corporation and therefore we lose our debt. What I want is
that the legislature shall at all times have the power to render
such individual liability on the part of all men engaged in the
corporation that people around in the neighborhood who are getting
credit on the strength of it shall be secured for their debts
against the corporation.

MR.
BROWN of Kanawha. There is but one class of corporations
against which this doctrine ought to be enforced, and even there it
is doubtful. That is the case of banks of circulation, which have a
peculiar privilege conferred on them more than any other
institution in the state. Every possible security that can be given
the note holder within the power of the law-maker should be
required that does not destroy the institution itself.

MR.
PARKER. It is policy to protect our people in all cases where
we can from giving credit where it is not deserved but it seems to
me to adopt the policy suggested by the gentleman from Tyier would
prevent any association of wealth from incorporating under this
law. If all individuals that enter into an incorporation are to be
liable for all the debts that the corporation may contract it will
make it a mere private partnership.

MR. VAN
WINKLE. The amendment proposed by the gentleman from Tyler
destroys the very idea of an incorporation. A mercantile
incorporation is that of limited responsibility. It is just that
thing that induces men to incorporate, for each knows exactly how
much he is going to risk.

The hour
having arrived, the Convention took a recess, Mr. Van Winkle having
first presented the following report, which on his motion was laid
on the table and ordered to be printed:

SECOND REPORT OF THE
COMMITTEE ON FUNDAMENTAL AND GENERAL PROVISIONS

The Committee on Fundamental and General Provisions respectfully
report the following additional provisions, and recommend their
insertion in the Constitution.

By order of the committee,
P. G. VAN WINKLE, Chairman.

All officers elected or appointed under this Constitution may be
removed from office for misconduct, incompetence, or neglect of
duty, in such manner as may be prescribed by law, and unless so
removed, shall continue to discharge the duties of their respective
offices until their successors are elected or ap- pointed and
qualified.

The terms of all State and county officers, and of the members
of both houses of the legislature, not elected or appointed to fill
a vacancy, shall, unless herein otherwise provided, begin on the
day of next succeeding their election. All elections and
appointments to fill vacancies shall be for the unexpired term. All
vacancies in elective offices shall be filled by special
elections.

The privilege of the writ of habeas corpus shall not be
suspended, except when, in time of invasion, insurrection or other
public danger, the public safety may require it. No person shall be
held to answer for treason, felony or other crime, unless on
presentment or indictment of a grand jury. No bill of attainder, ex
post facto law, or law impairing the obligation of a contract,
shall be passed.

No law abridging freedom of speech or of the press shall be
passed, but the legislature may provide for the restraint and
punishment of the publishing and vending of obscene books, papers
and pictures, and of libel and defamation of character, and for the
recovery, in civil actions, by the aggrieved party, of suitable
damages for such libel and defamation. Attempts to justify and
uphold an armed invasion of the State, or an organized insurrection
therein, having in view the overthrow of the government thereof,
during the continuance of such invasion or insurrection, by
publicly speaking, writing or printing, or by publishing or
circulating such writing or printing, may be, by law, declared a
misdemeanor, and punished accordingly.

Private property shall not be taken for public use without just
compensation. No person, in time of peace, shall be deprived of
life, liberty or property without due process of law.

The military shall be subordinate to the civil power.

The right of the citizens to be secure in their houses, persons,
papers and effects, against unreasonable searches and seizures,
shall not be violated. No warrant shall issue but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons and things to
be seized.

In suits at common law, where the value in controversy exceeds
twenty dollars, the right of trial by jury, unless waived by the
parties, shall be preserved. No fact tried by a jury, shall be
otherwise re-examined in any case than according to the rules of
the common law.

The trial of crimes and misdemeanors, unless herein otherwise
provided, shall be by jury, and shall be held publicly, and without
unreasonable delay, in the county where the alleged offense was
committed, unless, upon petition of the accused, and for good cause
shown, or in consequence of the existence of war or insurrection in
such county, it is removed to some other county. In all such trials
the accused shall be informed of the character and cause of the
accusation, and be confronted with the witnesses against him, and
shall have the assistance of counsel for his defense, and
compulsory process for obtaining witnesses in his favor.

In all criminal prosecutions, the jury shall be the judges of
both law and the fact. In prosecutions and civil suits for libel,
the truth may be given in evidence; and if it shall appear to the
jury that the matter charged as libelous is true, and was published
with good motives, and for justifiable ends, the verdict shall be
for the defendant.

Excessive bail shall not be required, or excessive fines
imposed, or cruel and unusual punishment inflicted. Penalties shall
be proportioned to the character and degree of the offense. No
person shall be compelled to be a witness against himself, or be
twice put in jeopardy for the same offense. No citizen shall be
subjected to corporal punishment, except to death by hanging, for
treason, murder, rape or arson. All prisoners shall be bailable by
sufficient sureties, except in capital cases where the proof is
evident or the presumption great.

The enumeration in this Constitution of certain rights and
privileges shall not be construed to impair or deny others retained
by, or inherent in, the citizens of the State.

Such parts of the common law, and the laws of the State of
Virginia, as are in force within the boundaries of the State of
West Virginia when this Constitution goes into operation, and are
not repugnant thereto, shall be and continue, the law of this
State, until altered or repealed by the legislature. Nothing herein
contained shall affect grants of lands, legally issued by the
Commonwealth of Virginia before the seventeenth day of April, in
the year one thousand eight hundred and sixty-one, or subsequently
thereto, by authority of the restored government thereof, or any
inchoate or imperfected right to such grants. All civil and
criminal suits and proceedings pending in the county or circuit
courts theretofore held within the said boundaries when this
Constitution goes into operation, shall be docketed and thereafter
proceeded in, in the circuit court of the proper county; and all
such suits and proceedings then pending in the Supreme Court of
Appeals of the State of Virginia, if the defendant resides within
the said boundaries, and the plaintiff is entitled to prosecute in
this State, shall be docketed, and thereafter proceeded in, in the
Supreme Court of Appeals thereof.

AFTERNOON SESSION

The Convention re-assembled.

The Chair stated the question to be on the motion of Mr. Soper
to amend Mr. Van Winkle's substitute for the additional section
offered by Mr. Caldwell to the legislative report, Mr. Soper
proposing to add these words: "Dues from corporations shall be
secured by such individual liability of the corporators and other
means as may be prescribed by law."

MR. SOPER. I was going to amend that motion by inserting
the words "to citizens of this State," so it would read; "Dues from
corporations to citizens of this State, etc."

THE PRESIDENT. The gentleman cannot modify his
proposition if there is any objection.

MR. HERVEY. I object to the modification. I make the
announcement immediately after the question has been stated. If the
objection is not out of order I desire to be considered as
objecting to any change.

MR. SOPER. If the proposition is varied very materially,
it is a new proposition.

THE PRESIDENT. The Chair is of the opinion that an
amendment with a view of fighting again merely would not be in
order. The gentleman could not obtain by a mere modification of his
own proposition the right to additional privilege in debate.

MR. HERVEY. That is the point I make.

MR. SOPER. It is an entirely different proposition.

MR. LAMB. I will make the motion, and the gentleman will
understand me as not intending to vote for it. I suppose it would
be perfectly in order for me.

THE PRESIDENT. The amendment would be in order; but
really the Chair would dislike to see a parliamentary management of
that kind to effect a purpose against which the Convention had
decidedly shown opposition to.

MR. SOPER. I hope the Chair and the Convention will see
that this kind of gag operations will not answer the purpose. There
is but one fair way, and that is to allow every question here to be
discussed in moderate time. We will have this whole question up
every day during this session unless there is some modification of
this; and instead of getting through in a week or ten days we will
be here two or three months.

THE PRESIDENT. Such a thing could be brought about but it
would be a very unfortunate condition of things and would divide
the house into factions upon rules of order, which would be greatly
to be regretted.

MR. SINSEL. It seems to me there is nothing more clear
than that after a proposition has been submitted and fairly stated
and discussed, or whether discussed or not, that the mover of the
proposition cannot withdraw it only by general consent. Now that I
think is clear; and this would only be an evasion in order to
protract and delay. If this Convention wishes to get along, they
have established the rule and the only way is to adhere to it
without regard to persons or individuals. Every member of this
Convention ought to have at least an equal chance here. No one
member is entitled to more respect and courtesy than another is,
provided he conducts himself in that way. When a proposition is
submitted the matter can be modified only by general consent. If
any one member objects it cannot be done.

MR. POMEROY. The Chair has already decided the point, and
the gentleman from Tyler has been speaking upon it; but now it is
an amendment offered by the gentleman from Ohio. Of course if a
motion is to be discussed and the vote is about to be taken on it,
it is proper for another man to offer an amendment to that; and
therefore the objection cannot lie in this case.

MR. SINSEL. No one objects to that.

MR. POMEROY. And I believe the Chair has already so
decided.

THE PRESIDENT. The Chair is of opinion that the motion of
the gentleman from Ohio would be in order. The Chair only expressed
regret that the purpose, in all appearances - I cannot say what the
object is by any means, but it would seem to carry an indirect way
of doing what the house decided should not be done. And while the
Chair would very much regret, the Chair would not depart from the
rule.

MR. LAMB. In justification of myself I may say that I
have held but one principle in regard to this power from the start:
that in attempting to shut out free discussion in this Convention
instead of saving time the Convention will do what it has done at
present, waste time. If you have forty provisions to that effect,
it will be the result of every one of them. Instead of saving time,
you are delaying and confusing the proceedings of the Convention.
The best way to expedite business is to leave discussion free.

MR. BROWN of Kanawha. It seems then the rule that the
Convention has prescribed is to be departed from. It is to be
driven from its purpose by this delay in order to throw annoyances
in its way. I may be led but I cannot be driven; and whenever any
gentleman, or set of gentlemen, undertake to pursue a course for
the purpose of harassing and annoying, and, if I may use the
expression, baffling the Convention, to drive them into abandoning
a rule they have prescribed, it would only make me adhere to it
with ten-fold more tenacity. And I say further that if this
Convention has not the resolution to maintain its ground when it
has taken it, then it ought to dissolve itself and go home. I
regret exceedingly that the gentleman may have made the motion for
the purpose as I understand it, for if any gentleman makes a motion
right and proper in itself - but I regret that a motion is made to
do indirectly what the house has made a rule not to do. Now, I
could not vote for a motion of that sort.

MR. BROWN of Preston. Has the gentleman from Tyler avowed
that he made that motion with a view of making a speech?

THE PRESIDENT. The gentleman did not declare in words
that that was his purpose. The question is on the amendment offered
by the gentleman from Ohio.

MR. SOPER. I disclaim any intention to offer anything by
way of threat or anything on this body. If in the warmth of debate
I use words that would be construed that way, they are not
intentionally so uttered. The amendment which now is proposed, sir,
to the section that is offered shows more clearly what object I had
in view in proposing the original proposition. I endeavored to call
the attention of the Convention to the necessity of the case, and I
was met by the gentleman from Logan with expressions by which he
characterized it as a New York measure and said if I understood him
correctly that he wanted nothing from that quarter to come and
interfere with the business of this Convention, or something to
that effect. I did say that unless you guarded your authority here
to grant companies of incorporation, you would have a class of men
from New York and other eastern states besieging your legislature
and courts for acts of incorporation for speculative purposes. I
did say that, and that was all that I did say; and if the gentleman
had combatted that proposition I should not have said anything in
reply. But the gentleman then rather inconsistently said -

THE PRESIDENT. The gentleman will confine himself to the
question between the amendment and the original proposition.

MR. SOPER. I know, sir. He instantly said there was a
great deal of money in New York and he wanted it to come here.
-

MR. SMITH. I did not say a word about these speculative
people that would come here after incorporation; but I objected to
the amendment because it was calculated to drive capital out of the
State, and I want to bring capital into the State.

MR. SOPER. I know, sir; I only referred to the
speculators. It is true this proposition is taken mainly from the
State of New York - at least substantially. But it is a provision
which if adopted here will prove wholesome and beneficial.

There are two classes of men that combine together for corporate
purposes. The object of both is to make money. One set of men have
got capital and discretion and honesty and will transact their
business in the most careful and prudent manner. They do not care
how many restrictions you throw around them. If their operation is
profitable they will continue it and whenever it becomes
unprofitable they will stop it and pay up their debts and
discontinue business. There is another class without capital, or
who, if they have got some capital, are without integrity and
honesty; and they will come and get your acts of incorporation, and
then by means peculiar to themselves they will by an inflation of
the stock contract debts in your neighborhood; and whenever they
can amass money and get such credit as they can from the community,
that institution or corporation will become insolvent and then your
honest citizens in and around your neighborhood are the kind that
will suffer. It is to protect those men that I have offered this
proposition; and if gentlemen will look at it, it has no other
effect. And they will find it by sore experience if they should be
driven to make constitutional provisions similar to those in order
to protect their citizens.

Well, now, sir, the amendment here goes so far as to protect
citizens in Virginia - and who are they? Not stockholders; not the
gentlemen combined in these incorporated companies, but your
farmers and laborers who have made a few dollars to lend to those
men supposing them to be wealthy and honest who will meet their
engagements. That is the class to be protected by this provision;
and I submit to this Convention whether or not you do not want to
protect your citizens. You are laying no unjust burdens on those
men. That don't permit them to come in and say how business shall
be transacted. After they have got all they can get from you, they
will blow up and throw you away and say, why, here the corporate
funds are gone, and there may be individuals out of that very
institution rolling in wealth and you gentlemen who have
contributed to aid and assist them as you pleased will be deprived
of getting a cent. Now, it is to take care of citizens who are
defrauded by companies of that kind.

I merely in a few words wanted to present this proposition
directly to the Convention, and I will now again remark that there
is a similar provision in the State of New York, and put there
after a most sore experience solely to protect honest citizens
throughout the country. The men of capital will always take care of
their own capital; but as I before remarked if capital is employed
by honest men they do not regard a provision of this kind in your
Constitution. It is one they calculate to act up to anyhow. All it
requires is that they pay their honest debts, and if they find
themselves in failing circumstances and if they will be resorting
to hidden means of extending their credit, and if they will be
guilty of things of that kind, sir, they ought to be followed
wherever they go and compelled to pay every cent.

I want to be directly to the point. It has come down now to a
very small compass. If you incorporate this provision in the
Constitution, it does not affect honest men that intend to and are
able to pay their debts. If you do not incorporate this, you are
liable to be dissatisfied if you get into the hands of dishonest
men.

Well, then, there is another provision about it: If some
gentlemen come together to form a corporation they will be very
careful into whose hands they let their stock go. They will be very
careful how they contract debts. It throws guards around all
parties. So that you will perceive, gentlemen, that if the act of
incorporation is a profitable business conducted on honorable
principles, why they are not injured by it; but, as, on the other
hand, if it turns out to be unprofitable, it ought to be stopped
instantly, and this provision would have a tendency to stop it.
And, gentlemen, they would not sell out their incorporation after
it had become insolvent to a set of worthless men because the
legislature will make them responsible. They will not permit a set
of men to get an institution and keep it going until they get it
unprofitable and then sell it to a set of insolvents. Not if the
legislature follows up this provision, because they will ask every
individual shareholder for a number of years if he has been the
owner of stock in the institution. And what effect will it have?
Why, gentlemen say, no man of means will go into it. If money is to
be made by it, men of means will go in; and if that is not the
result, they will wind it up and he will be careful to part with it
to responsible men.

(Here the President's gavel fell.)

The question was taken on the amendment offered by Mr. Lamb and
it was rejected; and the question recurring on Mr. Soper's original
amendment, the vote was taken and it also was rejected.

The question recurred on Mr. Van Winkle's substitute for the
additional section proposed by Mr. Caldwell, which as amended was
reported as follows:

"The legislature shall pass general laws whereby any number of
persons associated for mining, manufacturing, insuring or other
purpose useful to the public, excepting the issuing of bills to
circulate as money or the construction of works of internal
improvement, may become a corporation on complying with the terms
and conditions thereby prescribed; and no special act incorporating
or granting peculiar privileges to any joint stock or other company
or association not having in view the issuing of bills to circulate
as money or the construction of some work of internal improvement,
shall be passed. But no company or association authorized under
this section shall issue bills to circulate as money; and no
charter of incorporation shall be granted under such general laws
except where the object cannot be attained under such general
laws."

Mr. Soper offered the following as a substitute:

"The legislature may pass general laws by which any persons may
be incorporated on complying with the provisions to be contained in
such laws and be subject to all such general laws as may from time
to time be enacted not inconsistent with the provisions of this
Constitution.

"The share-owners in any incorporation except insurance
companies, in case the corporation shall become insolvent shall be
liable for the unpaid debts of such corporation contracted while he
was such share-owner to an amount in the same proportion as his or
her share shall bear to the whole stock of such incorporation.
Liabilities shall not extend to any indebtedness which shall not
have been demanded by suit within two years after it shall have
become due."

MR. LAMB. I am obliged to call the question of order in
regard to the last resolution. It is exactly the same as we have
voted down - the latter part of the resolution.

THE PRESIDENT. The Chair is of opinion that in substance
it is about the same.

MR. VAN WINKLE. It is modified by other provisions. It is
obnoxious to the same objections that is certain; obnoxious as a
whole to the objections made this morning. I particularly ask the
attention of the Convention to the remarks made by the gentleman
from Logan on this occasion and the previous one. The bowels of our
earth are filled with the wealth that could be extracted, and these
corporations have proved to be the only means by which it can be
extracted. Then to attach such provisions to these corporations as
would make their grants perfectly nugatory is to defeat the very
object of the whole measure. If the Convention agree with the views
that have been so ably presented by the gentleman from Logan as to
the importance of promoting these corporations for these beneficial
purposes, having now removed from this section banks of circulation
and internal improvements, and all that is asked for the others
being facilities for transacting their business in a certain way -
if the Convention agree in the importance of having these
corporations afforded facilities for creating them without
soliciting the legislature and being subject to have to vote for
some enormous expenditure of money; if they think they are
desirable in this way, I shall ask them, then, to stick to the
substitute as we have amended it here this morning. Although I do
not pretend to say for one moment that the gentleman from Tyler is
sincere in the view he presents, I feel satisfied that in this
country, at any rate such provisions as he has introduced there by
way of substitute would be fatal to all these corporations.

MR. SOPER. Well, sir, if the Chair overrules the second
proposition I am entitled to be heard on the first. There are two
distinct sections in the paper that has last been sent up.

MR. PRESIDENT. The Chair was willing to hear the
gentleman from Tyler as showing the difference between the
substitute and his other proposition as voted down, if he shall
have satisfied the Chair that there is a wide and distinct
difference, the Chair may modify his opinion.

The Secretary read the first paragraph.

MR. SOPER. That I apprehend to be new matter entirely.
But then again, sir, I have a right to be heard on the proposition.
I have not spoken to it at all.

THE PRESIDENT. On the merits of the proposition not
without the Chair entertains it. The Chair has heard the gentleman
from Tyler, desiring to know whether he ought to entertain it or
not, the Chair was first led to the impression it did differ in
important provisions from the other; but other gentlemen who had a
better opportunity to attend to its reading than the Chair thought
it was the same, and the Chair then determined to hear the
gentleman from Tyler. If he could show that the proposition was in
substance and effect different from that voted down, the Chair
would entertain it, but if it was the same proposition, he would
not entertain it, and its merits could not be spoken to. The only
point on which he was prepared to hear from the gentleman from
Tyler was whether it was in substance or was not the proposition
heretofore voted down. If it was in substance the same though in
language very different, it ought not to be entertained under the
rules of the house. But with a view of cutting short and saving
time, the Chair is disposed to put it to vote.

MR. LAMB. The point of order I raised was that it was not
competent simply to alter a portion of what was offered by the
gentleman from Tyler and claim it as a new proposition. It has no
application I presume to the first. The substitute consists of two
distinct propositions. I thought the second offered was
substantially that which we had just voted upon. But the first
proposition is a different matter altogether.

THE PRESIDENT. The Chair is of opinion that the substance
and effect of the proposition now offered would be just about the
same as the one offered previously.

MR. STUART of Doddridge. It strikes me, Mr. President, if
you were one of these incorporated companies you would see it in a
different light. Suppose you and I and the gentleman from Logan
were incorporated to carry on some particular business. I put in
ten thousand, you twenty thousand, the member from Logan forty
thousand. If the proposition of the gentleman from Logan makes me
liable for ten thousand dollars and the proposition of the
gentleman from Tyler makes me liable for the whole amount, then if
there is any difference between $10,000 and $70,000 there is a
difference between these propositions.

THE PRESIDENT. I was not in the chair when the other was
offered. If the two propositions bear that distinction the Chair
would be of opinion that it would be in order.

MR. BROWN of Kanawha. It looks to me as if the
proposition of the gentleman now embraces a different proposition
from that of the first. By the first proposition, as remarked by
the gentleman from Doddridge, as he supposed or necessarily
implied, each stockholder would be liable for the whole; but this
confers on the legislature the power to prescribe; and the
legislature might if it saw fit impose the same liability for the
whole or for a part only.

MR. SOPER. What disposition of the first section,
sir?

THE PRESIDENT. The Chair will entertain the proposition
both on the first and second proposition.

MR. SOPER. Mr. President, the first section is not
obligatory on the legislature. I use the word "may." They may pass
general laws to authorize the incorporation of companies for
various purposes, or they may not. I submit the whole thing by this
proposition to the legislature. If I recollect the proposition for
which this is offered as a substitute is binding on the
legislature. They in certain cases shall pass general laws. That is
the difference between the two. There is nothing to prevent, if
this substitute is adopted, the legislature may reserve to
themselves the whole power of granting a company or incorporation
or may pass general laws for the incorporation of specific
companies or for specific purposes. They may do that, and it
appears to me, sir, if this whole matter is to go before the
legislature at all it had better go in that way and then the
legislature are free, as time shall disclose necessities, either to
enlarge these corporate powers or restrict them. They will have the
whole control of the matter within their own jurisdiction.

That is the difference, sir, between the two propositions. There
is another difference.. The other is limited. It is not applicable
to banking institutions or works of internal improvement. Now,
according to the laws of Virginia you can organize an association
for public improvement, if I understand it correctly for almost
every other purpose. As the laws now exist you can do it, and why
not leave this general authority and power with the legislature.
You can get rid of this difficulty we have so often heard of here,
that we are legislating in the Constitution, that we are going too
much into detail. If you adopt the first section of the proposition
I now offer as a substitute, you will give the general authority to
the legislature, give them unlimited power over the whole matter
without going into detail and saying where they shall go and where
they shall not go and what they shall do and not do. You get rid of
that objection. Now, if we are going into detail and cannot go far
enough to take care of what we suppose to be the interests of the
people at large, then we will leave this matter to the legislature
and let them become wise from experience. Why, sir, you invite
capital to come here, to get your institution, your cannel coal
companies. Why how did the gentleman get those things? Why, they
may get some learned man to apply to the county court and get an
act of the legislature. How do they become insolvent? Why, they
issue some hundred thousand dollars worth of stock without
receiving a cent and then they will go to Wall Street and inflate
it and crowd it off on the community and then let the thing blow up
- and then where is your improvement? If you want to get
responsible men to come here and develop the resources of your
country, bring men of real capital who will come with it and look
after it personally. But if you do not take some plan of that kind
in your act of incorporations you will be fleeced most horribly, or
the people of the country will. I believe I have seen since I have
been here in Wheeling an act of incorporation that will prove one
of the greatest engines of speculation that can be drawn in the
city of New York accompanied by responsible names an act of
incorporation granting to several millionaires (professedly)
wanting to purchase all your lands and settle them; and this stock
will be distributed in the manner I tell you of and the lands will
be got hold of and then held at speculative prices, and instead of
increasing your population they will be set so high that men will
not touch them and held by men who can put this stock up in Wall
Street, and whenever it becomes necessary to buy it in can down
with it until they can make fortunes out of it out of the
unsuspecting people. And, sir, I have seen an incorporation for a
bank passed by this legislature that you no more could get where
men understand the effect of these institutions than you could jump
over this house. You will find these instances all around you and I
call upon gentlemen here to pause before they tie up this
legislature in a way that they save unsuspecting men under this cry
of taking care and bringing out the resources of this country and
settling it up. No, gentlemen, every one of you are capable of
taking care of your own affairs and you manage it prudently. You
will do it yourself. And whenever you find men coming among you
that have got capital they will come with it; and whenever you see
individuals of that kind coming among you and settling down and
distributing their capital in the improvement of their country you
may look for real improvement.

MR. VAN WINKLE. The perfect answer to all this is that if
a parcel of schemers come out here and act as the gentleman
describes, his provision will not be worth one straw in the
protection of the public. You cannot protect it by legislation
against schemers. You may punish them if you can catch them; but I
would say if you compel them to go to the legislature to get a
special charter they would go« there and get it when honest
men could not because they would have no scruples as to what they
would promise, and it would be utterly impossible to guard against
them; and if they come here men of no property they would be the
same then they got to the end of it. If they were New York
speculators, you could not enforce your law, for they would keep
out of your way; so that the thing would be perfectly nugatory for
the very case in which he cites it.

MR. SMITH. It seems to me the amendment of the gentleman
from Tyler is exceedingly objectionable. The original proposition
excludes from the general law banking privileges. He embraces all
corporations within the discretion of the legislature; and while he
is protecting the citizen against corporations, he is giving
everybody in the community a charter for banking. He proposes by
his amendment to give the privilege to any set of men - these
scoundrels he speaks of in New York - an opportunity to get a
corporation, then go and deal in Wall street, cheat one another
with it, and bring out a set of bogus stockholders here, with a
bogus institution, and whenever you get to this liability clause,
why these men of property are not in the bill. It is only these
bogus men you could look to. They are not worth anything. Get a
bank of circulation with these bogus stockholders; get from New
York these speculators, and they will flood the country with money
that is of no value. Now we don't give the privilege in this law of
ours - in the original - the permission to establish banking
institutions and make them as common as the leaves on the trees, to
make their notes fill the whole air and cover the whole country,
till they would have no value. That is the character of his
amendment, for it gives that privilege. But we want a charter that
will bring solid capital to the country. As I said on another
occasion, we want corporations framed in such way as will induce
men of substantial capital to adventure their money in the
improvement of the country. He wants, by putting the liability
feature in it, to bring bogus stockholders and bogus charters to
flood the country with it. That is his plan; but I want one of a
liberal character that will induce men of capital to engage in it.
Now by the very terms of the law, by the very terms of every
charter all the stock and all the capital which any man puts in
that association is liable anyhow. He loses his whole capital if
the company becomes insolvent; and a wealthy man when he takes
stock will say I cannot afford to lose this much; if I cannot
attend to it, I will not subscribe to it, I am willing to make a
substantial act of incorporation and to make that capital subject
to the debts of the corporation and no more. A man if he gets into
an association of that kind can tell how much he does adventure. He
may adventure his whole estate. Now that does not suit people
without money. They want to get money. It is the worst means in the
world to induce capital into the country. I know there has been a
system of fraud in New York, and they are very jealous of it, and
because of that they are very much shocked because there are
speculators there. We have got them here. You give power to the
legislature to make general laws and whenever speculators come into
the country and want money out of an incorporation, why, here is
the legislature, how prevent it? The whole subject is open to the
legislature. They can compel it. By leaving the Constitution as
proposed in the original section we trust it to the legislature;
but are we so foolish, so ignorant, so wilfully blind to our own
interests that we will not take care of ourselves by requiring the
legislature to guard the country against loss. You had better
provide in your Constitution that no man shall enter the business
unless he has some capital to secure his creditors; unless he
places on record somewhere or other a mortgage or trust to the
amount of $150,000 or $200,000 to indemnify the world against the
debts he shall contract. That is only to guard the creditor with an
individual dollar; and you may as well ask that proposition as the
other. The best way is to leave commerce and trade open to every
man's own judgment. If you are unwilling to trade, with a
corporation, demand security for the debt you contract. Every man
has the right to demand it. If I sell them property, I will ask
that corporation to give me personal security. If the legislature
shall hereafter see fit or deem it necessary to place on
corporations let them have it in their power; but to put it in here
you make it imperative and you destroy the power of the State to
help itself when it needs aid, and you leave it all the advantage
of the proposition whenever the occasion does arrive for
introducing that protection which the gentleman here asks. It is in
the hands of the legislature. While we are poor and want to invite
capital, we are left in a condition to invite it. I object entirely
to it. I do it from a strong sense of duty to the country; looking
to the country as it is; not to legislating for a wealthy community
where individual wealth is counted by millions, but here where we
can hardly count it by thousands, and where we have more natural
wealth than those who live in the land of millionaires. All we want
is capital to develop it; and you are tying the hands of the
legislature.

I hope it will be the pleasure of the Convention to leave this
matter to the legislature, as the original proposition leaves it,
and not tie up the hands of the people and say to them they are
wholly unworthy to be trusted to manage their own affairs.

MR. SOPER. There seems to be a misunderstanding between
my friend and me. The original proposition here, sir, is one of
restriction. The proposition that I have offered is general. It may
be it authorizes the legislature to establish banks by general
laws. Banks in the first proposition are excepted out of it.
Incorporations for internal improvements are excepted. The
legislature are prohibited from granting any general law for these
objects under the first proposition. But the one I have introduced
is general. It includes all banks or corporations; and I do it
because I want to give this power to the legislature; because I
find that gentlemen differ with men so much on the subject, they
are unwilling to incorporate without any restrictions. The second
section of my proposition I understand the Chair rules out. It is
the simple proposition that the legislature may pass general laws
to organize incorporated companies. They may do it for any purpose
or for all purposes. But the first proposition says they shall not
do it for banks nor as to companies for internal improvements. This
is the difference between the two. I am placing more confidence in
the legislature than the gentlemen. There is no difficulty, and the
legislature will come up to it before long. They will not grant an
act of incorporation unless there is security given to protect the
bill holder. If you confine them to your own stocks and those of
the United States, you are safe. But add to that the personal
security of your stockholders and then the bill-holders are safe.
Not only hold the stockholders individually responsible, in
addition to that giving the bill-holders the preference first to be
paid out of the fund if the institution becomes insolvent.

MR. SMITH. If the first clause is merely permissive, what
is the use of it? The legislature have the power already.

MR. SOPER. I suppose they have if we pass nothing at all
on the subject. But I would rather see every proposition here
before the Convention voted down unless the power is given to them
generally and discretionary. They shall have a discretionary power
over all acts of incorporations. I am satisfied, sir, that these
are prudent regulations. Now, sir, banks, we have no business with
them unless they be necessities. It is not on the circulation of
the bank that banks make their money but in the deposits and they
are only to be found in the cities.

I want my friends to bear in mind what remarks I make here. I
speak in soberness and I think in truth, and I think many of you
gentlemen who may probably represent this new State in the
legislature, if you do so, your experience may bring to your
recollection some words I have now dropped out here to show the
necessity of protecting your people.

MR. LAMB. This whole discussion has had one effect at
least on my mind, to convince me that the best and wisest course
for this Convention to pursue is to put no provision on the subject
in the Constitution. The legislature will then have full authority
in regard to the matter. They can adopt, as undoubtedly they will
adopt, general laws for the purpose of establishing corporations in
all proper cases; and if the securities which are contemplated by
the gentleman from Tyler become necessary the legislature can
provide for that also. It strikes me this is the wisest and most
prudent course for us to pursue.

MR. BROWN of Kanawha. The gentleman from Ohio has come to
his conclusions too slow. If we had adopted that course before we
entered on this discussion we would have saved much time; but now
that we have gone through the work and got the section into a shape
that I think is about right, we had better stand to it. I am for
maintaining the proposition as it stands and as we have adopted it
part by part.

MR. VAN WINKLE. I want to strike out the words "or other"
in the 7th line. That might be construed, for instance, municipal
corporations and others.

There being no objections the elision was made, and the question
recurred on the adoption of the section.

MR. BATTELLE. I merely want to say it seems to me that I
shall feel constrained to vote against this proposition as it
stands; and I hardly think the framer of the substitute would
recognize it in its present form. It seems to me a proposition to
restrict somebody, I don't know exactly who, about something, I
don't know exactly what; and feeling persuaded that the
legislature, at any rate, will have perfect competency over all
this question I am disposed, for one, to leave it to their
discretion.

This is intended, first, to make it obligatory on the
legislature to pass such general laws and in the second place, to
restrain the legislature from granting exclusive privileges to any
of them. Now, most certainly, if all these are legislative acts, it
is intended to operate directly on the legislature to insure to the
community this easy mode of obtaining corporations for useful
purposes; on the other hand, to prevent partiality being shown
among them; that is, that whatever is done or denied to one is done
or denied to all.

MR. HARRISON. Like the gentleman from Ohio, it seems to
me this proposition as it is now before the house is a very
different proposition from what was printed. It has been bandied
about from member to member until it seems to have no particular
meaning. It has had so many different amendments to it that I don't
understand it now; but if I did it accomplishes nothing at all. One
object of the proposition is that it shall be mandatory on the
legislature to pass general laws; and then there is a provision
inserted by the gentleman from Wood that if the object cannot be
accomplished by general law then the legislature shall pass a
special law. Well, now, sir, will not every corporation or
association consider that its wants are peculiar, that it will
require special legislation; that these general laws will not meet
its case; and will not they be at all times applying to the
legislature for special acts in reference to their particular
association? It does not prevent that application or log-rolling in
the legislature, which was the object of the original proposition
to prevent. Again, sir, the legislature, we all concede has the
general power to pass these laws. This requires that they shall
pass a general law. Is there any necessity for putting into this
Constitution any such regulation? Why, the very thing proposed here
the legislature has seen the wisdom of, the necessity of having
general laws; and having power on the subject of corporations is on
our statute books to-day. That has prevented special applications.
So it seems to me the way the proposition now stands it really
accomplishes nothing. We say the legislature shall pass general
laws to incorporate these companies; but we turn around and say
that if you can't do it in this way you can have a special law. And
who is to judge whether a special law is necessary or not? Why,
sir, it amounts to this only that it gives to the legislature the
discretion. We are prescribing a rule to the legislature saying you
shall have the discretion to pass a general or special law just as
the case may require. Now what is the use of our prescribing the
method of legislation on a matter of this kind? It is utterly
useless, sir; utterly useless. Because I can see no necessity for
it. I think like the gentleman from Ohio that I shall vote against
it.

The vote was then taken on the additional section, as amended,
and it was adopted.

MR. LAMB. I move to lay the report and amendments on the
table and have it printed as amended - the whole three reports.

The motion was agreed to.

MR. VAN WINKLE. I am requested by the chairman of the
Committee on Taxation and Finance to ask that that subject may be
made the order of the day for tomorrow and so on until completed.
The reason given is that he is obliged to leave town on Monday. It
is a short report, as the Convention will remember, though it may
excite considerable discussion and require mature deliberation. But
I hope the Convention will accede to the request. We were at a loss
last evening which we should take up first; and as it will promote
the object in view I hope we will accede to the request of the
chairman. I move the report of the Committee on Taxation and
Finance be made the order of the day for tomorrow morning at nine
o'clock.

The motion was agreed to.

MR. VAN WINKLE. The report of the Committee on County
Organization was passed by to permit me to prepare a clause I had
intended to offer but had forgotten. To fill in the time and get
rid of the matter, if the Convention please, I will indicate what I
propose. I desire to offer as an additional section, the
following:

"Either party to a civil suit brought before a justice of the
peace when the value in controversy or the damages claimed is less
than $20, or the defendant in cases of misdemeanor or breach of the
peace cognizable by a justice of the peace where the penalty is
imprisonment and the fine exceeds five dollars, shall be entitled
to trial by six duly qualified jurors."

When this is either adopted or rejected, the report can be
printed.

I will now offer this with a single remark that I think the
justice jurisdiction being a hundred dollars a jury might be
interposed when demanded and some of this criminal business given
to the justices of the peace. It will leave it entirely to the
legislature what description of business; but whatever they make
cognizable by justices may be tried in this way. It would relieve
the circuit courts of a good deal of small business, and it seems
to me the mode of trial contemplated here would be agreeable to the
citizens of the country. These small misdemeanors if a man is taken
up promptly and fined on the spot, it has a terror about it that
the far- off grand-jury and quibbling of lawyers does not have; and
in a case that is punishable by a fine so small, it is not
improbable a short imprisonment would be put in their power. It
would be better they should be disposed of at once and in a fair
way before a justice instead of going into the courts.

The Secretary reported the section as proposed:

"Either party to a civil suit brought before a justice of the
peace when the value in controversy or damages claimed exceeds
twenty dollars, or the defendant in cases of misdemeanor or breach
of the peace cognizable by a justice of the peace, when the penalty
is imprisonment or a fine exceeding five dollars, shall be entitled
to a trial by six duly qualified jurors."

MR. VAN WINKLE. I would remind the Convention that the
criminal jurisdiction by the section passed is such as the
legislature may give them, and the reason I did not offer this at
once was that I had prepared a section in contemplation that it
would be best as originally reported; but that change induced me to
withhold it at the time, and so it was forgotten.

MR. SOPER. This is a very important provision, and I want
gentlemen to look at it and see how it will operate. I am for
giving the trial by jury in all cases unless waived by the party in
the proposition, and I move, sir, to strike out the words "twenty
dollars"; and then it will read, if I understand it rightly, either
party may have a jury before a magistrate.

MR. STUART of Doddridge. I cannot vote intelligently on
this matter now in the present state of affairs. I understand the
section in the judiciary report has not yet been completed so as to
determine in what amount circuit courts shall have jurisdiction
concurrent with justices.

MR. VAN WINKLE. It is not in the proposition you speak of
as printed.

MR. STUART of Doddridge. Then I make the inquiry of the
gentleman from Wood to inform me what is the concurrent
jurisdiction of the circuit courts and justices?

MR. VAN WINKLE. This by the proposition of the gentleman
from Kanawha, which has not been acted on, the jurisdiction of the
circuit court is made down to twenty dollars. That has not been
voted. It is to be called up when it is convenient for the
gentleman to do so.

MR. STUART of Doddridge. I should much rather the
question should come on that first.

MR. VAN WINKLE. I have no objection if the chairman of
that report is ready to take it, up.

MR. BROWN of Kanawha. I do not desire to enter on that
this evening I confess the proposition printed there is not
complete as I desire to present it. I have prepared another that
was handed in at the time and printed as I desired to have it, and
I so announced at the time; but I think the proper place is to
consider this subject here, for that was one of the difficulties in
preparing the judiciary report - not knowing what the Convention
were going to fix the jurisdiction of the justices at.

MR. VAN WINKLE. If the gentleman thinks the amendment
should be acted on at all -

MR. BROWN of Kanawha. It occurred to me in settling the
jurisdiction of justices of the peace, in the report on county
organization is the proper place to do it. The judiciary committee
did report a jurisdiction for the justices of the peace, but the
Convention declined to consider that and went on and considered the
whole question of the justices' jurisdiction in the report on
county organization, treating him as a county officer and settling
his jurisdiction. Now, I say whatever that jurisdiction is that
ought to be made complete so that when you define your circuit
court jurisdiction it shall conform to what is provided. As you
have done the thing in part, I am not able to say whether it should
not be done in whole. Now, I cannot coincide with the proposition
of the gentleman from Tyler. I am opposed to giving these justices
of the peace juries in the country - opposed to it in toto.

MR. SOPER. There seems to be a misunderstanding about it.
The jurisdiction of justices was fixed at one hundred dollars.
Well, the gentlemen opposed to it said that if the circuit court
could have concurrent jurisdiction to a certain amount they would
be satisfied; and I think there was a vote taken here giving the
circuit court jurisdiction in all sums above twenty dollars.

MR. BROWN of Kanawha. I think it has not been passed.

MR. SOPER. I rather think it was, sir.

MR. STUART of Doddridge. Jurisdiction of justices of the
peace is settled undoubtedly as to the amount. Jurisdiction of the
circuit courts is not settled except that they should have
concurrent jurisdiction to twenty dollars and upwards.

MR. DILLE. I would suggest to the gentleman from Wood
that if he proposes to introduce that proposition, or introduce it
this evening, let it be printed; and when the subject comes up
properly let the thing be before the Convention; and now, in
compliance with the order this morning let us take up the executive
report and proceed with it as far as we can.

MR. VAN WINKLE. With the consent of the Convention, with
a view of taking up the executive report, this proposed additional
section is withdrawn.

MR. CALDWELL. I want to bring to the attention of the
members of this Convention the fact that in nothing that has been
brought before this Convention for its consideration has there been
proposed anything like a probate court, or, in other words, a
tribunal for the admission of wills to probate, the granting of
letters of administration, the appointment of curators, etc. I
believe in the report on the judiciary department the power of
probate is conferred on the circuit courts; but I want to remind
the members of the Convention that in other states they have
probate courts sitting all the while, from day to day, and in our
state we have had the facility of these probate courts from month
to month twelve times a year. Therefore, it is, I want to bring to
the attention of the Convention whether it will be sufficient to
satisfy the wants of the people of the new State to say they shall
only have the tribunal of the circuit court for the admission of
wills to probate, etc. I think, sir, too much delay, too much loss
might result if we do to wait from one term of the circuit court to
another; and, therefore, with a view of establishing some tribunal
in each county of the State, I don't propose to establish and
operate a court in each county of the State, because I am satisfied
a probate court could not maintain itself without an incumbrance on
the people. I do not know precisely what probate would be in the
county of Ohio; I know what it has been in the county of Marshall.
In that county for the year 1861 the number of wills admitted to
probate was six and of letters of administration granted eight;
number of guardians appointed, together with one committee, seven.
The fees resulting would not amount to more than thirty dollars. So
that Marshall county, one of the largest in the State, could not
maintain a probate court.

I propose, sir, in this report now before the Convention to
establish some sort of a tribunal in place of this probate court
that might answer the purpose and prevent delays. I propose to give
to the recorder of wills and deeds power to admit wills to probate,
grant letters of administration, appoint guardians, curators, etc.,
with right of appeal to any party aggrieved to the circuit court;
to bring this in as section 5 at the end of the word "Recorder." I
see, sir, my amendment is prepared to come in as a section after
the end of the 5th clause. As well there perhaps as after the word
"Recorder."

The Secretary reported the provision as follows:.

"That the recorder of wills and deeds shall have, under such
regulations as may be prescribed by law authority to admit wills to
probate, grant letters of administration, appoint guardians,
curators, etc., with right of appeal to any party aggrieved to the
circuit court."

MR. VAN WINKLE. I would suggest to the gentleman to make
an independent section.

MR. CALDWELL. I will offer it as an independent section,
then. I do not desire to detain the Convention with any further
remarks. I think there ought to be some tribunal of this kind for
the discharge of the duties of probate.

MR. STEVENSON of Wood. I would call the attention of the
gentleman from Marshall to the fact that "deeds and wills" were
stricken out.

MR. DILLE. I supposed the Convention had accomplished the
same purpose when they had adopted this 5th section. We have
provided there for a recorder. The committee when they reported
that section contemplated that the recorder there referred to would
be the party who would have charge of just the same department and
perform the same duties as is contemplated by this section just
introduced, and I can see no reason for changing my notion on that
subject. If the gentleman will look at the latter part of that
clause he will find that the legislature may from time to time
direct and authorize the duties, all of whom shall be prescribed by
general laws. Suppose you have a recorder, why then you can throw
just such duties on that recorder as the legislature in the
exercise of its wisdom upon that subject thinks proper. The object
of striking out the words "of deeds and wills" was to express the
very matter contemplated. If you definitely fix here that he shall
be the recorder of deeds and wills alone why then you might exclude
the other powers; that would preclude the idea that other powers
might be conferred on this officer by general laws. It seems to me
the very object contemplated by the gentleman can be effected by a
provision of law conferring the power on this party of admitting
wills as well as deeds to record and also appointing guardians,
granting letters of administration, etc. It seems to me as though
there is nothing inconsistent with the idea, and that was my object
when the words "and deeds" were stricken out, as it was on my
motion. It seems to me in looking at it that the same object can be
accomplished - has been - by the legislation as is attempted to be
accomplished by the provision of the gentleman from Marshall.

MR. VAN WINKLE. I am inclined to regard with favor the
proposition of the gentleman from Marshall. I coincide with what
the last gentleman who spoke has said. The power is there, but
there is this same distinction that there was in the proposition
that has been in debate to-day. The one, as the report stands now
gives the legislature the power to do so if they deem it expedient.
The proposition of the gentleman from Marshall, with a view to
relieve the circuit courts as much as possible inasmuch as they sit
but once in three months to have it open every day, makes it
obligatory on the legislature to do so. Now, that is the practical
question for consideration. It is a matter with which I am not very
familiar. I know that there is an inconvenience in having to wait
term after term in the county court. I had some conversation with
the gentleman from Monongalia, now absent, on this subject. In the
Convention of 1850 he was anxious for the establishment of probate
courts throughout the state for this very purpose. I asked him when
he first came on here whether he still favored them and he said,
no; his subsequent experience had shown him that it would be too
costly an operation; that some officer, he observed, could as well
discharge the duties, in the first instance, at all events, and
that the erection of these courts would be a costly thing in the
country where so little of it was done. He has I know given
considerable attention to this subject, and he has had a great deal
of experience in it. He seemed to think it might be confided in
this way to some officer, and said the county courts would probably
be abolished and it would devolve, as it used to, on the clerk of
that court or some other officer, who could do it as well as the
clerk. The legislature, if they acted on the subject at all, would
provide that such a case should not be proceeded in before the
recorder. The gentleman who last spoke as to the views of the
judiciary committee assumed that if he was charged with the record
of these things he would also be charged with the admission to
probate, etc.; but the question is now raised by the proposition of
the gentleman from Marshall whether it shall be made obligatory on
the legislature to pass the proper laws for enabling the recorder
to discharge these duties, or whether it shall be left an open
question that they may give it to him or to some other officer as
they please. On the whole, I am inclined to favor the amendment
because I should like to give the matter that direction, that the
recorder of these papers should have the charge of it in order that
the people who have business of that kind to transact might not be
delayed.

MR. BROWN of Kanawha. I am glad the gentleman from
Marshall has brought this before the Convention. It is one of the
difficulties that struck me when we had provided for the election
of a recorder but had prescribed no duties. The recorder is to my
mind a word without meaning in the judicial sense; for the word
means a various number of things, and there is nothing in our laws
to define it; and, as the gentleman from Wood has remarked the
legislature may give it no duties in the world - not even the
recording of a deed or will or any other thing, may set him to
keeping accounts. I go on the idea now that no court has been
proposed to be substituted in lieu of the county court. That is not
the proposition yet before this Convention, whether they will have
a county court. If on the idea that we are to have no county court
and that is to obtain, then it is essential we should provide
something in its stead. Now, it is essential to have a probate
court of some character. There is an attempt in the judiciary
report to give the circuit courts probate jurisdiction; but they
would only sit four times a year, and here are necessary wants
arising between times. I have very strong objections to giving the
power of the probate court to an officer where the whole thing is
fixed up between two men about a dead man's estate. I do admire the
old plan of Virginia, that whatever is done is done in open court,
and whoever undertakes to do anything it is generally done before
the world and it is read out loud; where fraud is very difficult to
keep in. It is an embargo on fraud. To transfer this to the office
of a man who sits in his office every day about other duties, and
when some person comes in it is all settled up there among
themselves, and you have no assurance except in the honesty and
integrity of the officer. But I do not know where else to provide
for this office but to give it to this recorder. The gentleman from
Marshall has answered to my mind not only what I had expected would
take place, that you cannot maintain a probate court, and you are
compelled to impose the duties on somebody else who is not a
probate court, or any court at all, but who is to be chosen for
other qualifications altogether, that of recorder. Well, while this
is not an objection so much to confer it here in this state of the
case, it is rather an objection that arises out of the course we
are proposing to adopt, of abandoning the organized courts we have
already. That it is essential to have some probate court somewhere
all over the state admits of no question. I think the gentleman
from Preston is in error in permitting this to be left to the
legislature. If it is intended the recorder is to have any such
office, it must be conferred in the Constitution, for the
legislature may throw it somewhere else. I think there is greater
fitness in providing for this here than for the magistrates in the
provisions about townships. I think also the other duties of the
recorder might be more legislative. Inasmuch as the first section
of the judiciary report as adopted declares the judicial power of
the state is to be in the courts, the legislature could not confer
this judicial function on the recorder if it were not provided for
expressly in the Constitution. The Constitution is, therefore to
determine whether this judicial function is to be conferred on the
circuit court or on the magistrates' court. The magistrates' court
has its jurisdiction expressly delegated; to the circuit court it
is proposed to give all the general jurisdiction of the State that
is not expressly prohibited to it and conferred on some other
court. Then here would be the whole residium of the jurisdiction of
the courts and all the judicial power in the State. It is therefore
proper that this probate power should be conferred on this recorder
in the Constitution if it intended he shall have any power at all;
and if we fail to provide some other tribunal on whom it can be
conferred, then I see no better place to confer it than on the
recorder. For the present I shall vote for conferring it there.

MR. CALDWELL. I am glad to see that I have brought to the
attention of the Convention a matter that seems to be regarded as
of some considerable importance; and with a view of considering it
further so that we may be able to perfect this matter, I think we
had better defer it until morning, and with these views, I now move
the Convention adjourn.